Petition for Writ of Certiorari — Graham L. Stowe, Petitioner v. Gregory Van Rybroek, Director, Mendota Mental Health Institute
Supreme Court briefNov 19, 2024
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Case: 23-3345
Document: 25
Filed: 08/21/2024
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-3345
GRAHAM L. STOWE,
Petitioner-Appellant,
v.
GREGORY VAN RYBROEK, Director, Mendota Mental Health Institute,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 18-cv-400-wmc — William M. Conley, Judge.
____________________
ARGUED AUGUST 6, 2024 — DECIDED AUGUST 21, 2024
____________________
Before EASTERBROOK, ST. EVE, and KOLAR, Circuit Judges.
EASTERBROOK, Circuit Judge. Charged in 2004 with violent
offenses against his former girlfriend and her family, Graham
Stowe pleaded no contest but contended that he had been insane when he committed the crimes. A state judge agreed
with Stowe but ordered him committed for 39.5 years (the appropriate sentence in the absence of an insanity finding) unless recovery entitled him to earlier release.
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He was released in 2007 but soon returned to custody after
violating the conditions of release. (He tried to locate his former girlfriend at her workplace; he also used alcohol and perhaps other drugs.) He escaped in 2013 and was not caught for
three months; while free he used marijuana and perhaps other
drugs. He was charged with escape and convicted; he did not
present an insanity defense.
In 2016, once his sentence for the escape had ended, Stowe
asked for release under the terms of Wis. Stat. §971.17(4)(d):
The court shall grant the petition [for release] unless it finds by
clear and convincing evidence that the person would pose a significant risk of bodily harm to himself or herself or to others or of
serious property damage if conditionally released. In making this
determination, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime,
the person’s mental history and present mental condition, where
the person will live, how the person will support himself or herself, what arrangements are available to ensure that the person
has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.
A psychologist and a psychiatrist testified at a hearing that
Stowe met the diagnostic criteria for “Other Specific Personality Disorder with Narcissistic and Antisocial Features”. Another psychologist, who applied a different label to Stowe’s
mental state, concluded that he presents an enhanced risk of
violence against other persons, especially when using drugs.
The state’s circuit court denied his petition for release, relying
on the elevated risk of violence, and the court of appeals affirmed. State v. Stowe, 2018 WI App 8. (This decision also supplies some details about Stowe’s crimes, which are not relevant for current purposes.)
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Stowe then sought collateral review in federal court under
28 U.S.C. §2254. He argued that Wis. Stat. §971.17(4)(d) violates the Due Process Clause of the Fourteenth Amendment,
as understood in Foucha v. Louisiana, 504 U.S. 71 (1992), because it allows the state to keep in custody someone who is a
danger to self or others without finding that this person also
has a mental disease or defect. Stowe observes that the circuit
court found that he remains dangerous but did not decide
whether the psychologists were right in concluding that he
still has a mental disorder. The district judge understood this
as a contention that §971.17(4)(d) had been applied to him unconstitutionally but concluded that Stowe had not preserved
an as-applied argument in the state courts. 2023 U.S. Dist.
LEXIS 199971 (W.D. Wis. Nov. 6, 2023), at *17.
The only contention preserved through all levels of the
state judiciary, the district judge found, is that §971.17(4)(d) is
invalid on its face—that is, invalid with respect to all persons
within its scope, no matter what the evidence shows and no
matter what findings the state judge makes. The federal judge
thought that contention untenable, because §971.17(4)(d) permits the court to consider “the person’s mental history and
present mental condition”. This means that state judges frequently will consider, and act on, evidence about a detainee’s
mental condition and not just the detainee’s dangerousness.
The district judge issued a certificate of appealability limited to the question whether §971.17(4)(d) is invalid on its
face. Stowe did not ask us to expand the certificate to include
an as-applied challenge. Our review is confined accordingly.
Wisconsin’s judiciary held that §971.17(4)(d) is constitutional, so under 28 U.S.C. §2254(d)(1) Stowe needs to show
that this decision “was contrary to, or involved an
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unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States”.
Stowe locates the “clearly established” law in Foucha. That argument encounters an insuperable hurdle: Justice O’Connor,
who supplied the controlling vote in a five-to-four decision,
filed a separate opinion limiting the scope of the holding. 504
U.S. at 86–90. She stressed features of Louisiana’s system that
§971.17 does not share. A decision that turns on elements specific to one state’s system does not “clearly establish” the invalidity of another state’s system. Three years after Foucha, the
Supreme Court of Wisconsin unanimously held a statute
functionally the same as §971.17 to be valid, relying on some
of these distinctions. State v. Randall, 192 Wis. 2d 800 (1995).
Like the district court, we do not see a stark incompatibility
between Randall and Justice O’Connor’s views.
Section 2254(d)(1) is not Stowe’s only obstacle. To get anywhere with a facial challenge (even in litigation under the
First Amendment, which this is not) a litigant must show that
“a substantial number of [the law’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Americans for Prosperity Foundation v. Bonta, 594
U.S. 595, 615 (2021). See also Moody v. NetChoice, LLC, 144 S.
Ct. 2383 (2024). Randall read Justice O’Connor’s opinion to
permit the detention of dangerous insanity acquittees who
have regained their mental health, if the state offers treatment
to improve their chances of release. Justice O’Connor wrote:
“I do not understand the Court to hold that Louisiana may
never confine dangerous insanity acquittees after they regain
mental health.” 504 U.S. at 87. She added that a “medical justification” for detention is important and that detention could
be justified if “tailored to reflect pressing public safety concerns related to the acquittee’s continuing dangerousness.” Id.
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at 87–88. Randall held that the benefits of mental-health treatment, coupled with a detainee’s dangerousness and the other
criteria listed in the state‘s statute, could supply any necessary
justification. It added that Wisconsin does not authorize “indefinite” detention, as Louisiana did, but limits detention to
the time justified by the appropriate sentence for the criminal
conduct (here 39.5 years). 192 Wis. 2d at 808. Randall also
thought it significant that in Wisconsin the burden to justify
detention rests on the state, while in Louisiana the burden of
showing entitlement to release was on the detainee. Ibid.
Even if we suppose that Randall’s reading of Justice
O’Connor’s views is problematic (though any error is not
“clearly established”), the fact remains that §971.17(4)(d) permits courts to consider evidence of a detainee’s “present mental condition”. For many people that evidence will entail
proof of ongoing mental disease. Because state courts implementing §971.17(4)(d) often will make all findings required to
support detention on anyone’s understanding of the Due Process Clause, a federal court cannot be confident that “a substantial number of [the law’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate
sweep.” And it assuredly cannot be confident that “no set of
circumstances exists under which the [law] would be valid”
(United States v. Salerno, 481 U.S. 739, 745 (1987)), the standard
for facial challenges that do not rest on the First Amendment.
Stowe’s observation that the state’s circuit court did not
make findings, one way or the other, about whether he continues to suffer from a mental disease, is an as-applied challenge,
which has not been preserved for resolution in federal court.
The circuit court found that Stowe remains at an elevated risk
of committing violent crimes—and the only evidence offered
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to support that finding was the psychologists’ conclusion that
Stowe has an ongoing mental disorder. If Stowe had pressed
his as-applied contest in the circuit court (which he did not),
the judge may well have made express the conclusion that is
implicit in the finding that Stowe poses an ongoing risk of violence: that the cause of this risk is a mental problem. The Due
Process Clause does not entitle Stowe to immediate release.
AFFIRMED
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Case: 3:18-cv-00400-wmc Document #: 14 Filed: 09/26/22 Page 1 of 34
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
GRAHAM STOWE,
Petitioner,
REPORT AND RECOMMENDATION
v.
18-cv-400-wmc
GREGORY VAN RYBROEK,
Director, Mendota Mental Health Institute,
Respondent.
REPORT
Petitioner Graham Stowe is confined at the Mendota Mental Health Institute in
Madison, Wisconsin. After being charged with violent crimes in 2004, Graham was found
not guilty by reason of mental disease or mental defect (“NGI”) and was committed to the
custody of the Wisconsin Department of Health Services for a term of 39½ years.
In February 2016, Stowe petitioned the state circuit court for conditional release.
Among other things, Stowe argued that the state was violating his right to due process by
continuing to detain him even though he was no longer mentally ill. The Wisconsin Court
of Appeals disagreed and affirmed the denial of conditional release. The court found
Stowe’s due process claim foreclosed by the Wisconsin Supreme Court’s decision in State
v. Randall, 192 Wis. 2d 800, 532 N.W.2d 94 (1995), which held that Wisconsin’s
statutory scheme for confinement of NGI acquittees was facially constitutional even
though it permitted continued confinement based solely on a determination of
dangerousness. Stowe filed a petition for review asking the Wisconsin Supreme Court to
reconsider Randall, but the court declined to grant review.
Appendix C-26
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Stowe now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, reasserting
his claim that he is in custody in violation of the Due Process Clause of the United States
Constitution.
Stowe contends that his continued confinement despite the State’s
concession that he no longer has a mental disease or defect that would have supported an
NGI plea in the first place is inconsistent with the Supreme Court’s decision in Foucha v.
Louisiana, 504 U.S. 71 (1992). Stowe’s petition, in effect, asks this court to overturn the
Wisconsin Supreme Court’s 27-year-old decision in Randall and declare unconstitutional
Wisconsin’s statutory scheme for confining insanity acquittees. This statutory scheme
limits the insanity acquittee’s term of confinement to the maximum he could have received
for the underlying criminal conduct, places the burden on the State to prove by clear and
convincing evidence that the commitment should continue, and confines the acquittee in
a structured environment that seeks to treat the acquittee’s mental illness or behavioral
disability that makes him dangerous.
Stowe’s petition has been referred to me by the presiding judge, William Conley,
for report and recommendation. As explained in more detail below, I recommend that the
court deny Stowe’s petition. Stowe has not identified any clearly established Supreme
Court law that prevents a State from confining a sane-but-dangerous insanity acquittee
under a statutory scheme like Wisconsin’s. Accordingly, he has failed to show that he
qualifies for federal habeas relief under 28 U.S.C. § 2254.
Appendix C-27
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BACKGROUND
I. Wisconsin’s Statutory Scheme for Insanity Acquittees
Wisconsin recognizes that “a person is not responsible for criminal conduct if at the
time of such conduct as a result of mental disease or defect the person lacked substantial
capacity either to appreciate the wrongfulness of his or her conduct or conform his or her
conduct to the requirements of law.” Wis. Stat. § 971.15(1). In recognition of this fact,
a defendant charged with a crime may plead not guilty by reason of mental disease or
defect, commonly referred to as an “NGI” plea. Wis. Stat. § 971.06(1); State v. Fugere, 2019
WI 33, ¶ 1, 386 Wis. 2d 76, 86, 924 N.W.2d 469, 473. Unless joined with a plea of not
guilty, such a plea “admits that but for lack of mental capacity the defendant committed
all the essential elements of the offense charged in the indictment, information or
complaint.” Id. “The terms ‘mental disease or defect’ do not include an abnormality
manifested only by repeated criminal or otherwise antisocial conduct.”
Wis. Stat. §
971.15(3).
If the defendant's NGI defense succeeds, then the court enters a judgment of not
guilty by reason of mental disease or defect and “shall thereupon proceed under s. 971.17.”
Wis. Stat. § 971.165(3)(b). Under Wis. Stat. § 971.17(1)(b),
When a defendant is found not guilty by reason of mental
disease or mental defect of a felony committed on or after July
30, 2002, the court shall commit the person to the department
of health services [“DHS”] for a specified period not exceeding
the maximum term of confinement in prison that could be
imposed on an offender convicted of the same felony[.]”
Under Wis. Stat. § 971.17(3)(a), the court shall order institutional care if it finds “by clear
and convincing evidence that conditional release of the person would pose a significant risk
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of bodily harm to himself or herself or to others or of serious property damage. If the court
does not make this finding, then it must order conditional release. Id. If the court order
specifies institutional care, then “the department of health services shall place the person
in an institution . . . that the department considers appropriate in light of the rehabilitative
services required by the person and the protection of public safety.”
Wis. Stat.
§ 971.17(3)(c).
Under the statute, a person committed for institutional care may petition the
committing court to modify its order by authorizing conditional release “if at least 6
months have elapsed since the initial commitment order was entered, the most recent
release petition was denied or the most recent order for conditional release was revoked.”
Wis. Stat. § 971.17(4). Within 20 days after receipt of the petition, the court shall appoint
one or more examiners, at state expense, to assess the person’s appropriateness for
conditional release and to furnish a report to the court. Within 30 days after the report is
filed, the court must hear the petition, and must grant it “unless it finds by clear and
convincing evidence that the person would pose a significant risk of bodily harm to himself
or herself or to others or of serious property damage if conditionally released.” Id.
In making this determination, the court may consider, without
limitation because of enumeration, the nature and
circumstances of the crime, the person's mental history and
present mental condition, where the person will live, how the
person will support himself or herself, what arrangements are
available to ensure that the person has access to and will take
necessary medication, and what arrangements are possible for
treatment beyond medication.
Id.
Appendix C-29
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II. Jones v. United States
In Jones v. United States, 463 U.S. 354 (1983), the Court considered whether a
person committed to a mental hospital after an insanity verdict must be released because
he has been hospitalized for a period longer than he might have served in prison had he
been convicted. Although Stowe makes no such claim here, an examination of Jones is
helpful before turning to Foucha.
Jones was charged in the District of Columbia Superior Court with attempted petit
larceny, a misdemeanor punishable by a maximum prison sentence of one year. Id. at 359.
The Superior Court found petitioner not guilty by reason of insanity and committed him
to a mental hospital under the District of Columbia’s statutory scheme. Id. at 360. Under
this scheme, an insanity acquittee was entitled within 50 days of his commitment to a
judicial hearing to determine his eligibility for release, at which he had the burden of
proving by a preponderance of the evidence that he was no longer mentally ill or dangerous.
Id. at 357. The district’s code also provided that the acquittee was entitled to a judicial
hearing every six months at which he may establish by a preponderance of the evidence
that he is entitled to release. Id.
At Jones’s 50-day hearing, the court found that he was mentally ill and constituted
a danger to himself or others. Id. at 360. A second release hearing was held after Jones
had been hospitalized for more than one year, the maximum period he could have spent
in prison had he been convicted. Id. Jones demanded that he be released unconditionally
or recommitted pursuant to the civil-commitment procedures under the District of
Columbia Code, including a jury trial and clear and convincing proof by the Government
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of his mental illness and dangerousness. Id. The Superior Court denied his request for a
civil-commitment hearing, reaffirmed the findings made at the 50-day hearing, and
continued his commitment. Id. at 360-61. The District of Columbia Court of Appeals
ultimately affirmed. Id. at 361.
The Supreme Court granted certiorari to decide “whether petitioner, who was
committed to a mental hospital upon being acquitted of a criminal offense by reason of
insanity, must be released because he has been hospitalized for a period longer than he
might have served in prison had he been convicted.” Id. at 356. The Court, while noting
the well-established principle that “commitment for any purpose constitutes a significant
deprivation of liberty that requires due process protection,” id. at 361 (quoting Addington
v. Texas, 441 U.S. 418, 425 (1979)), concluded that a “finding of not guilty by reason of
insanity is a sufficient foundation for commitment of an insanity acquittee for the purposes
of treatment and the protection of society.” 463 U.S. at 366. The Court then rejected
Jones’s constitutional argument that the state court could not hold him beyond the date
he would have been released if convicted by a jury, explaining that “[d]ifferent
considerations underlie commitment of an insanity acquittee” than punishment of persons
convicted of crimes. Id. at 369. The Court held that an acquittee's continued confinement
was constitutional “on the basis of the insanity judgment, to confine him to a mental
institution until such time as he has regained his sanity or is no longer a danger to himself
or society.” Id. at 370.
Appendix C-31
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III. Foucha v. Louisiana
Jones did not challenge the constitutionality of the District’s procedures for release,
nor did he seek release based on non-illness or non-dangerousness. Id. at 363 n. 11. That
type of challenge arose in Foucha v. Louisiana, 504 U.S. 71 (1992). Petitioner Terry Foucha
was charged by Louisiana authorities with aggravated burglary and illegal discharge of a
firearm. Id. at 73. Based on the testimony of two medical doctors, the trial court ruled
that Foucha was not guilty by reason of insanity, finding that he “is unable to appreciate
the usual, natural and probable consequences of his acts; that he is unable to distinguish
right from wrong; that he is a menace to himself and others; and that he was insane at the
time of the commission of the above crimes and that he is presently insane.” Id. at 74.
The trial court committed Foucha to the East Feliciana Forensic Facility until such time as
doctors recommended that he be released, and until further order of the court. Id.
About four years later, the superintendent of Feliciana recommended that Foucha
be discharged or released.
Id. A three-member panel convened at the institution to
evaluate Foucha reported that there had been no evidence of mental illness since admission
and recommended that Foucha be conditionally discharged, but it did not expressly make
a finding on the question of dangerousness. Id., n.2. The trial judge appointed a twomember sanity commission made up of the same two doctors who had conducted the
pretrial examination. In their report, these doctors stated that Foucha “is presently in
remission from mental illness [but] [w]e cannot certify that he would not constitute a
menace to himself or others if released.” Id., at 74-75. Elaborating at a hearing, one of the
doctors testified that Foucha: (1) probably suffered from a drug induced psychosis at the
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time of his initial commitment, but had recovered from that temporary condition; (2)
evidenced no signs of psychosis or neurosis and was in “good shape” mentally; (3) had an
antisocial personality, a condition that is not a mental disease and that is untreatable; and
(4) had been involved in several altercations at Feliciana. Ultimately, the doctor said that
he would not “feel comfortable in certifying that [Foucha] would not be a danger to himself
or to other people.” Id. at 75. After it was stipulated that the other doctor, if he were
present, would give essentially the same testimony, the court ruled that Foucha was
dangerous to himself and others and ordered him returned to the mental institution. Id.
at 75. Louisiana’s appellate courts affirmed the trial court, and the United States Supreme
Court granted certiorari.
The Court considered whether Louisiana’s statutory scheme of recommitment of
insanity acquittees violated due process and equal protection because it allowed “a person
acquitted by reason of insanity to be committed to a mental institution until he is able to
demonstrate that he is not dangerous to himself and others, even though he does not suffer
from any mental illness.” Id. at 73. The Court described Louisiana’s scheme:
When a defendant in a criminal case pending in Louisiana is
found not guilty by reason of insanity, he is committed to a
psychiatric hospital unless he proves that he is not dangerous.
This is so whether or not he is then insane. After commitment,
if the acquittee or the superintendent begins release
proceedings, a review panel at the hospital makes a written
report on the patient's mental condition and whether he can
be released without danger to himself or others. If release is
recommended, the court must hold a hearing to determine
dangerousness; the acquittee has the burden of proving that he
is not dangerous. If found to be dangerous, the acquittee may
be returned to the mental institution whether or not he is then
mentally ill.
Appendix C-33
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Id.
Joined by four justices, Justice White concluded that Louisiana’s scheme violated
due process. 1 First, the Court noted that in Jones, it had held that “the Constitution permits
the Government, on the basis of the insanity judgment, to confine [an insanity acquittee]
to a mental institution until such time as he has regained his sanity or is no longer a danger
to himself or society . . . i.e., the acquittee may be held as long as he is both mentally ill
and dangerous, but no longer.” 504 U.S. at 77, citing Jones, 463 U.S. at 368. The Court
rejected the lower court’s view that this language from Jones was limited to the specific
statutory scheme at issue in that case and therefore had no constitutional significance. Id.
To the contrary, wrote the Court, because it was undisputed that Foucha was not mentally
ill at the time of the lower court’s hearing, under Jones “the basis for holding Foucha in a
psychiatric facility as an insanity acquittee has disappeared, and the State is no longer
entitled to hold him on that basis.” Id. at 78.
The Court also rejected Louisiana’s alternative contention that it could “perpetuate
Foucha's confinement at [a psychiatric hospital] on the basis of his antisocial personality
which, as evidenced by his conduct at the facility, the court found rendered him a danger
to himself or others.” Id. at 78. First, even if Foucha’s continued confinement were
constitutionally permissible, keeping him against his will in a mental institution was
inappropriate absent a determination in civil commitment proceedings that he was
mentally ill, with “constitutionally adequate procedures to establish the grounds for his
Justice White also concluded that Louisiana’s scheme violated the Equal Protection Clause, but
only three justices joined that part of his opinion.
1
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confinement.” Id. at 78-79. Because Louisiana conceded that Foucha was not suffering
from a mental disease or illness, and because due process “requires that the nature of
commitment bear some reasonable relation to the purpose for which the individual is
committed,” if Foucha was to be held, then he should not be held as a mentally ill person.
Id. at 79.
Second, the Court found that Louisiana had no punitive interest in Foucha’s
continued confinement: by reason of his insanity acquittal, Foucha was exempt from
criminal responsibility for his acts and could not be punished. Id. at 80.
Next, the Court distinguished Louisiana’s scheme of confinement from the
confinement of pretrial detainees allowed by the Bail Reform Act of 1984, which the Court
had upheld in United States v. Salerno, 481 U.S. 739 (1987). The Court explained that in
contrast with the “sharply focused scheme” at issue in Salerno, Louisiana did not provide
Foucha with an adversary hearing at which the State must prove by clear and convincing
evidence that he was demonstrably dangerous to the community. To the contrary, the
burden was on Foucha to prove that he was not dangerous. Id. at 81-82.
The Court also noted that if Foucha had committed criminal acts, such as assault,
while housed in the mental institution, then the State could vindicate its interest by using
ordinary criminal process.
Id.
Finally, the Court noted that the detention found
permissible in Salerno was “strictly limited in duration,” whereas Louisiana was asserting
that because “Foucha once committed a criminal act and now has an antisocial personality
that sometimes leads to aggressive conduct, a disorder for which there is no effective
treatment, he may be held indefinitely.” Id. at 82.
Appendix C-35
Accordingly, found the Court,
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Louisiana’s detention scheme for sane-but-dangerous insanity acquittees did not fall within
the “carefully limited exceptions” allowed by the Due Process Clause. Id. at 83.
Justice O’Connor cast the fifth and deciding vote. Although she agreed with the
majority that Louisiana’s scheme violated the Due Process Clause, she wrote separately to
emphasize the limitations of the Court’s holding:
Louisiana asserts that it may indefinitely confine Terry Foucha
in a mental facility because, although not mentally ill, he might
be dangerous to himself or to others if released. For the reasons
given in Part II of the Court's opinion, this contention should
be rejected. I write separately, however, to emphasize that the
Court's opinion addresses only the specific statutory scheme
before us, which broadly permits indefinite confinement of
sane insanity acquittees in psychiatric facilities. This case does
not require us to pass judgment on more narrowly drawn laws
that provide for detention of insanity acquittees, or on statutes
that provide for punishment of persons who commit crimes
while mentally ill.
I do not understand the Court to hold that Louisiana may
never confine dangerous insanity acquittees after they regain
mental health.
Id. at 86–87 (O’Connor, J., concurring).
Justice O’Connor pointed out that the insanity defense becomes relevant only after
the prosecution establishes beyond a reasonable doubt that the defendant committed
criminal acts with the required level of intent. Id. at 87. This finding of criminal conduct,
she explained, set insanity acquittees apart from ordinary citizens and provides “concrete
evidence” of dangerousness. Id. in 87. In contrast, she noted, the state of knowledge about
mental disease was uncertain.
This uncertainty, she wrote, required courts to “’pay
particular deference to reasonable legislative judgments’ about the relationship between
dangerous behavior and mental illness.” Id. at 87 (quoting Jones, supra, 463 U.S., at 365,
Appendix C-36
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n. 13.) In her view, then, it might be permissible for Louisiana to confine an insanity
acquittee who has regained sanity “if the nature and duration of detention were tailored to
reflect pressing public safety concerns related to the acquittee's continuing dangerousness.”
Id. at 87-88. To confine an acquittee as a mental patient, however, the State would require
“some medical justification for doing so.” Id. at 88.
Finally, responding to Justice Thomas’s assertion in his dissenting opinion that 11
states–including Wisconsin--had laws comparable to Louisiana's, see id., at 112 & n.9,
Justice O’Connor found that number to be overstated. She noted that California and
Vermont had amended their laws to provide for the release of acquittees who do not suffer
from mental illness but may be dangerous, and that Wisconsin, New Jersey and
Washington “limit the maximum duration of criminal commitment to reflect the
acquittee's specific crimes and hold acquittees in facilities appropriate to their mental
condition.” Id. at 89 (citing Wis. Stat. §§ 971.17(1), (3)(c) (Supp.1991)). Such laws, wrote
Justice O’Connor, were not necessarily invalid under the Court's opinion. Id.
IV. The Wisconsin Supreme Court’s Decision in Randall
Three years later, in State v. Randall, 192 Wis. 2d 800, 532 N.W.2d 94 (1995), the
Wisconsin Supreme Court was asked to decide whether Wisconsin’s statutory
commitment scheme for insanity acquittees, “which allows the state to confine an insanity
acquittee who is no longer mentally ill, solely on the grounds that the individual is a danger
to himself, herself or others,” violated the Due Process Clause of the United States
Constitution. Id. at 806, 532 N.W. 2d at 96. The court’s answer was a qualified “no.”
After explicating the Supreme Court’s precedents on post-acquittal confinement, including
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Jones and Foucha, the Wisconsin Supreme Court concluded that Foucha permitted the
continued confinement of insanity acquittees based on dangerousness alone, provided that
“the nature of the commitment bears some reasonable relation to the purposes for which
the individual is committed.” 192 Wis. 2d at 832, 532 N.W. 2d at 107. In reaching this
conclusion, the Wisconsin Supreme Court read Justice O’Connor’s concurrence as having
“left the door open” to this possibility in her statement quoted above. Id. at n.22 (citing
Foucha, 504 U.S. at 87-88).
Observing that behavioral disorders that render a person dangerous may continue
even after the person recovers from mental illness, id. at 808, the court concluded that
Wisconsin’s scheme satisfied the “tailoring requirement” because Wisconsin’s two mental
health institutions designated for the treatment of insanity acquittees both were
therapeutically and behaviorally oriented to reduce their patients’ propensities for
dangerousness. Id. Further, insanity acquittees qualified as “patients” under Wisconsin’s
Patient’s Rights statute, which afforded them certain rights. Id. Ultimately, the court
concluded that
the legislature has determined that the treatment programs
made available to insanity acquittees in Wisconsin—regardless
of whether administered by the state or the county—are not
limited to the medical or pharmacological needs of the patient.
This state's statutory scheme provides a structured
environment which seeks to treat both the acquittee's mental
and behavioral disorders.
To the extent that insanity acquittees continue to receive
treatment during their confinement at Mendota or
Winnebago---whether that treatment is geared to reducing
clinical symptoms of mental illness or behavioral disabilities
which render the acquittee dangerous—we find there is
sufficient medical justification to continue the confinement
Appendix C-38
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and treatment. Accordingly, we hold that sec. 971.17(2),
Stats., (1987–88) does not violate due process because we
conclude there is a reasonable relationship between the nature
of the commitment and the purposes for which the individual
is committed.
Id., 192 Wis. 2d at 837–38, 532 N.W.2d at 108.
The Wisconsin Supreme Court noted that, in contrast with Foucha, where Louisiana
had conceded that Foucha was not mentally ill and suffered only from an untreatable
antisocial personality disorder, Wisconsin had made no similar concession with respect to
Randall. Id. at n. 19. The Wisconsin Supreme Court also noted two critical procedural
differences between Louisiana’s scheme and Wisconsin’s: first, under Louisiana’s scheme,
an insanity acquittee could be held in a mental institution “for an indefinite and unlimited
duration,” while Wisconsin’s statute limited the term of confinement to the maximum
term of imprisonment that could have been imposed for the offenses charged. Id. at 808,
532 N.W. 2d at 97. Second, Louisiana placed the burden on the insanity acquittee to
prove, by a preponderance of the evidence, that he or she no longer was dangerous, whereas
Wisconsin’s statute put the burden on the State to prove continued dangerousness by clear
and convincing evidence. Id. These features provided sufficient procedural safeguards to
insure a Wisconsin acquittee’s right to due process. Id.
Summing up, the Wisconsin Supreme Court concluded that a “single standard for
commitment, based on dangerousness alone, is permissible” under the Due Process Clause
if three criteria are met: (1) the maximum duration of the commitment is limited to reflect
the acquittee’s specific crimes; (2)the State bears the burden of proof at a recommitment
or release hearing; and (3) the State must confine the acquittee “in a facility appropriate
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to his or her mental condition.” Id., 192 Wis. at 841, 532 NW. 2d at 110. Because
Wisconsin’s statutory scheme satisfied all three criteria, it was constitutionally permissible.
Id. And in fact, noted the court, Justice O'Connor provisionally approved statutes such as
Wisconsin's in her concurrence. Id. at 839-40, 532 N.W.2d at 109 (citing Foucha, 504
U.S. at 89).
Concurring in the decision to remand the case to the circuit court, Justice Shirley
Abrahamson observed that the majority appeared to have grafted onto Wis. Stat. § 971.17
the requirement that a mental illness or behavioral disability that rendered the acquittee
dangerous must be present to justify continued confinement. Randall, 192 Wis. 2d at 842,
532 N.W. 2d at 110 (Abrahamson, J., concurring in the mandate). Although Justice
Abrahamson appeared to agree that interpreting the statute this way could satisfy the
requirement that the nature of the confinement bear a reasonable relationship to the
purpose for which the individual was confined, id., she declined to join the opinion because
in her view, Foucha held that the State could not confine an acquittee unless the mental
condition was one on which an insanity commitment could be based.
Id. She
acknowledged, however, that Foucha was “a troublesome decision” that was subject to
“conflicting interpretations by courts and commentators.” Id., at 843, 532 N.W. 2d at
111.
V. Stowe’s Confinement
Stowe’s confinement arises from events that occurred on February 9, 2004. The
Wisconsin Court of Appeals described these events in its December 2017decision affirming
the denial of Stowe’s petition for conditional release, and they are not in dispute. State v.
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Stowe, 2018 WI App 8, ¶ 17, 379 Wis. 2d 767, 909 N.W.2d 210.
On February 9, 2004, Stowe entered his ex-girlfriend's residence and forced her and
their two-year-old daughter out of bed at gunpoint. Stowe subsequently tied up and
handcuffed his ex-girlfriend, her minor brother, and her father. He beat her father with a
baton and doused him with gasoline and stated repeatedly that he was going to take his
ex-girlfriend somewhere and force her to watch him commit suicide. He also threatened
to kill her father and sister. Stowe's ex-girlfriend was ultimately able to call 911, and later
escaped with her daughter after police arrived at the residence. While police remained
outside the residence, Stowe took some pills—after again indicating he wanted to kill
himself—and then passed out. His ex-girlfriend's father and brother then were able to
escape, and police took Stowe into custody.
The State charged Stowe with 11 counts in connection with these events, to which
Stowe entered pleas of not guilty by reason of mental disease or defect (NGI).
He
subsequently entered no contest pleas to first-degree recklessly endangering safety,
intimidation of a victim, felony bail jumping, and three counts of false imprisonment. The
circuit court found Stowe NGI with respect to those offenses, and the remaining charges
were dismissed. The court ordered Stowe committed to the Department of Health and
Family Services for institutional care for 39 years and six months.
At the time he committed the offenses, Stowe was experiencing “auditory
hallucinations that were giving him the message to kill himself,” and he had been diagnosed
with a mood disorder with psychotic features.
Stowe was conditionally released in April 2007 but was revoked in July 2009 and
Appendix C-41
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returned to DHS custody. Stowe petitioned for conditional release three times between
2010 and 2012, but each time was denied. In July 2013, Stowe escaped from a minimumsecurity unit at Mendota Mental Health Institute and evaded capture for more than three
months. He was subsequently convicted of escape and sentenced to prison. After serving
the initial confinement portion of his sentence, Stowe was returned to Mendota to serve
the extended supervision portion of his escape sentence concurrently with his commitment.
He was placed in a maximum-security unit.
VI. Stowe’s February 2016 Petition for Conditional Release
The subject of this habeas petition is a petition for conditional release that Stowe
filed in February 2016. The circuit court held a hearing at which it heard from two courtappointed psychologists who had evaluated Stowe (Dr. William Merrick and Dr. Kevin
Miller), a staff psychiatrist at Mendota (Dr. Elliot Lee), and Stowe’s wife. In addition,
Stowe's treatment team at Mendota submitted a letter to the court, and Stowe read a
statement in support of his conditional release.
Dr. Miller testified that Stowe's narcissism created a risk of him “doing something
impulsive,” citing Stowe's prior escape from Mendota as an example. While Dr. Merrick
reported that Stowe had not shown evidence of any mood disorder or psychotic symptoms
for many years and had not required psychiatric medications to manage symptoms of any
mental illness in over ten years, he and Dr. Lee both opined that Stowe met the diagnostic
criteria for “Other Specific Personality Disorder, with Narcissistic and Antisocial Features.”
Dr. Miller also indicated that antisocial personality characteristics “are associated with
higher risk of violence when compared with typical or average individuals.” Id. at ¶ 16.
Appendix C-42
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While Dr. Miller testified antisocial behaviors tend to decrease when a person reaches age
forty, Dr. Merrick, testified that narcissism, Stowe's “prominent . . . maladaptive
personality trait, does not show the same age-related decline.” Id. at ¶ 17.
After the hearing, the circuit court found the State had met its burden to prove, by
clear and convincing evidence, that Stowe would pose a significant risk of bodily harm to
himself or others if he were conditionally released.
VII.
Wisconsin Court of Appeals’ Decision
Stowe appealed, raising three claims: (1) the evidence was insufficient to support
the circuit court’s finding of continued dangerousness; (2) Wis. Stat. § 971.17(4)(d) was
unconstitutional as applied to him because he was no longer mentally ill and he was not
receiving therapeutic benefit from his confinement at Mendota; and (3) Wis. Stat.
§ 971.17(4)(d) was unconstitutional on its face because it permitted the continued
confinement of an NGI acquittee based on dangerousness alone. Id. at ¶¶ 2-6.
The Wisconsin Court of Appeals rejected Stowe’s arguments and affirmed the
circuit court. It determined that Stowe had forfeited his as-applied constitutional challenge
based on lack of therapeutic benefit by failing to raise it in the circuit court. Id. at ¶ 34.
The court rejected Stowe’s suggestion that it review the claim in its discretion or under the
plain error doctrine, noting that the merits of his as-applied claim depended on facts that
had not been developed below, and that Stowe would have the opportunity to raise his
argument when he next petitioned the circuit court for conditional release. Id. at ¶¶ 35-
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36. 2 As for Stowe’s facial challenge to the conditional release statute, the Wisconsin Court
of Appeals found it foreclosed by the Wisconsin Supreme Court’s decision in Randall,
which the court of appeals had no power to overrule or modify. Id. at ¶ 39. Finally, it
concluded that the evidence presented at Stowe’s conditional release hearing was “more
than sufficient” to support the circuit court's determination that the State proved, by clear
and convincing evidence, that Stowe would pose a significant risk of bodily harm to himself
or others if conditionally released. Id. at ¶ 27.
Stowe petitioned the Wisconsin Supreme Court for review and raised both his facial
and as-applied challenges to Wis. Stat. § 971.17(4)(d). He argued that the court should
overturn Randall as inconsistent with the United States Supreme Court’s decision in
Foucha. The Wisconsin Supreme Court summarily denied Stowe’s petition for review on
April 9, 2018. Stowe subsequently filed this timely petition for a writ of habeas corpus.
ANALYSIS
Stowe repeats his claim that Wisconsin’s statutory scheme concerning commitment
of insanity acquittees is unconstitutional on its face because it permits the continued
Stowe filed another petition for conditional release in December 2016, in which he properly
preserved a claim that Wis. Stat. § 971.17(4) was unconstitutional as applied to him because his
continued confinement at Mendota had no therapeutic value. Considering that argument on
appeal, the Wisconsin Court of Appeals rejected it based on its decision in State v. Randall, 222
Wis. 2d 53, 586 N.W. 2d 318 (Ct. App. 1998) (Randall II), which had interpreted Randall I as
establishing -- as a matter of law -- that there is a “therapeutic value to confining a [currently] sane
but dangerous acquittee to one of this state's mental health facilities.” State v. Stowe, 2019 WI App
39, ¶ 18, 388 Wis. 2d 256, 932 N.W.2d 179. I do not understand Stowe to be pursuing any claim
based on “lack of therapeutic value” in this proceeding. Even if he is, I would find that claim
procedurally defaulted for the reasons set out in the State’s brief, dkt. 9, at 11-12, which Stowe
does not contest.
2
Appendix C-44
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confinement of an acquittee after he regains his sanity. A few preliminary matters require
discussion before I address the merits.
First, when Stowe argues that he has “regained his sanity” or is “no longer mentally
ill,” I understand him to be contending that he no longer suffers from either the mood
disorder that he had at the time he committed the underlying offenses or any other mental
condition that Wisconsin recognizes would support an NGI plea in the first place. The
State does not dispute this.
However, there is also no dispute that Stowe has been
diagnosed with a different mental disorder, namely “Other Specific Personality Disorder,
with Narcissistic and Antisocial Features.” I understand Stowe’s claim to be that Foucha
prohibits Wisconsin from keeping him confined at Mendota pursuant to his NGI
commitment even for the purpose of treating his personality disorder.
Second, although circuit court records show that Stowe has had a number of
conditional release hearings since the 2016 hearing at issue in this petition, he has lost
them all. Stowe remains housed at Mendota, and Randall remains the law in Wisconsin.
See 2004CF000124 Case Details in Brown County (wicourts.gov).
Accordingly, this
petition is not moot.
Third, I reject Stowe’s suggestion that this court review his claim de novo, disposing
of the matter “as law and justice require,” 28 U.S.C. § 2243, rather than under the
deferential provisions of AEDPA, which apply only to claims “adjudicated on the merits in
State court proceedings.”
§ 2254(d).
Stowe asserts, cursorily, that de novo review is
warranted because the Wisconsin Court of Appeals “declined to address the merits” of his
facial challenge. Br. in Supp., dkt. 7, at 8. I disagree. As noted above, the Wisconsin
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Court of Appeals explained that the Wisconsin Supreme Court already had found
Wisconsin’s statutory scheme constitutional in Randall, a decision by which the lower court
was bound.
Plainly, the Wisconsin Court of Appeals did not overlook a claim with
constitutional dimensions; rather, it noted that this claim already had been decided and
rejected by the state supreme court. This constitutes an “adjudication on the merits,” so
AEDPA deference applies. Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a federal
claim has been presented to a state court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.”).
Under AEDPA’s provisions, this court cannot grant Stowe’s petition for habeas
relief unless the Wisconsin Court of Appeals’ adjudication of Stowe’s claim “resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). 3 The Wisconsin Court of Appeals rejected Stowe’s facial due process
challenge, relying entirely on Randall. Thus, I apply AEDPA’s provisions to the Wisconsin
Supreme Court’s decision in Randall, which the parties agree controls the outcome in this
case.
Stowe argues that Randall’s determination that Wisconsin’s statutory scheme for
confining insanity acquittees is contrary to Foucha. A state court decision is “contrary to”
clearly established Supreme Court precedent if the state court applies a rule different from
Stowe does not argue that the state appellate court’s decision was based on any unreasonable
determination of the facts, so I do not consider whether he would be eligible for relief under
§ 2254(d)(2).
3
Appendix C-46
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the governing law as set forth in Supreme Court cases, or if it decides a materially
indistinguishable case differently than the Supreme Court. Williams v. Taylor, 529 U.S.
362, 406 (2000). Stowe argues that Foucha clearly established a rule that a State must
release an insanity acquittee once he regains sanity or is no longer dangerous. Stowe
further argues that his case is indistinguishable because, like Foucha, he has recovered from
his mental illness and he suffers only from an antisocial personality disorder, which the
Court ruled was not enough to permit Foucha’s continued confinement under his insanity
acquittal.
The State, on the other hand, asserts that Foucha’s holding must be viewed through
the lens of Justice O’Connor’s concurrence, which expressly rejected Stowe’s formulation
of the rule and which reasonably supports the Wisconsin Supreme Court’s determination
that Wisconsin’s statutory scheme comports with due process.
As an initial matter, I agree with Stowe that Foucha does not call for application of
the “Marks” rule, which holds that “[w]hen a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices, the holding of the Court
may be viewed as that position taken by those Members who concurred in the judgments
on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977) (internal
quotation marks and citation omitted). As Stowe points out, Justice O’Connor expressly
agreed with the reasons provided by the majority for declaring that Louisiana could not
keep Foucha confined in a mental institution based solely on dangerousness. Therefore,
Marks does not seem to apply here. See Vasquez v. Hillery, 474 U.S. 254, n.4 (1986)
(describing the Marks rule as “inapplicable” to an opinion “to which five Justices expressly
Appendix C-47
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subscribed”).
Nevertheless, even if Stowe is correct that Justice O’Connor’s concurrence is not
“controlling,” that does not make it irrelevant to the analysis. To the contrary, given that
Justice O’Connor’s vote was essential to providing a majority opinion, her decision provides
important insight into the scope of that holding. McKoy v. North Carolina, 494 U.S. 433,
462, n.3 (1990) (where an individual Justice is needed for the majority, “the opinion is not
a majority opinion except to the extent that it accords with his views.”) (Scalia, J.,
dissenting). Here, it is fair to infer that if the majority opinion actually did hold that a
state “may never confine dangerous insanity acquittees after they regain mental health,”
then presumably Justice O’Connor would not have joined it. Her understanding of the
limitations of the majority’s holding cannot be ignored.
Contrary to Stowe’s interpretation, Justice O’Connor’s concurrence makes clear
that Foucha did not establish any hard-and-fast rule that a State must release a dangerous
insanity acquittee once he recovers his sanity. Rather, as she expressly stated, Foucha’s
holding was limited to “the specific statutory scheme before us” and did not apply to “more
narrowly drawn laws that provide for detention of insanity acquittees[.]” Foucha, 504 U.S.
at 86-87.
As noted above, Wisconsin’s scheme differs from Louisiana’s in two material
respects. First, unlike Wisconsin’s statute, Louisiana’s statute did not limit the maximum
term of confinement to the maximum term of imprisonment that could have been imposed
for the offenses charged, but instead allowed for “indefinite” confinement.
Thus,
Louisiana’s scheme, at least as described by the Foucha majority, was like that at issue in
Appendix C-48
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Jones, from which the Supreme Court pulled its broad language declaring that a State could
confine an insanity acquittee only until such time as he had regained his sanity or was no
longer dangerous. Second, Louisiana placed the burden on the insanity acquittee to prove,
by a preponderance of the evidence, that he or she was no longer dangerous. In Wisconsin,
the State must prove an NGI acquittee’s continued dangerousness by clear and convincing
evidence, and the acquittee may request reexamination and a release hearing at state
expense at periodic intervals. Given that Wisconsin’s scheme is “more narrowly drawn”
than Louisiana’s, it is not necessarily unconstitutional under Foucha.
Stowe does not deny that Wisconsin’s statute differs from Louisiana’s, but he offers
two reasons why the Wisconsin Supreme Court got Foucha wrong in Randall. First, Stowe
points out that the Randall court appears to have made a factual error when it said that
“[u]nlike Louisiana’s scheme,” Wisconsin required the State to prove guilt beyond a
reasonable doubt before the NGI defendant was entitled to a hearing on insanity. Br. in
Supp., dkt. 7, at 14 (citing Randall, 192 Wis. 2d at 107, 532 N.W. 2d at 833). As Stowe
points out, as described by both Justice O’Connor and the dissent, Louisiana did require
the State to prove “beyond a reasonable doubt that the defendant committed criminal acts
with the required level of intent” before the defendant may assert an insanity defense.
Foucha, 504 U.S. at 87 and 92.
But Stowe does not develop any argument as to why that mistake matters. Notably,
the Randall court did not appear to place any particular legal significance on this fact except
to note that the requirement of proof beyond a reasonable doubt provided the basis for the
State to incapacitate and treat the insanity acquittee, a proposition with which Justice
Appendix C-49
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O’Connor appeared to agree. Id. (noting that finding of criminal conduct by insanity
acquittees “sets them apart from ordinary citizens.”); see also Jones, 463 U.S. at 370
(“Insanity acquittees constitute a special class that should be treated differently from other
candidates for commitment.”).
Moreover, the fact that Wisconsin’s and Louisiana’s
statutes both require proof beyond a reasonable doubt for initial commitment does not
diminish the significance of the ways in which the statutes differ in their treatment of
insanity acquittees after commitment.
Stowe’s second and stronger argument is that the fairness of Wisconsin’s procedures
has nothing to do with Foucha’s substantive due process requirement that the “nature of the
commitment bear some reasonable relation to the purpose for which the individual is
committed.” In Stowe’s view, Foucha held that a sane insanity acquittee can never be held
in a mental institution, regardless of the fairness of the procedures used.
Once again, Justice O’Connor’s concurrence defeats Stowe’s argument.
Justice
O’Connor wrote that she did not “understand the Court to hold that Louisiana may never
confine dangerous insanity acquittees after they regain mental health.” Id. at 87. Rather,
she wrote, it might “be permissible for [a State] to confine an insanity acquittee who has
regained sanity if, unlike the situation in this case, the nature and duration of detention
were tailored to reflect pressing public safety concerns related to the acquittee's continuing
dangerousness.” Id. at 87-88. Justice O’Connor specifically identified Wisconsin’s statute
as one that seemed to meet this requirement. Id. at 89. Finally, Justice O’Connor suggested
that an insanity acquittee could be confined as a mental patient if there was “medical
justification for doing so.” Foucha, 504 U.S. at 88.
Appendix C-50
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In light of this language, it is impossible to conclude that the Wisconsin Supreme
Court erred, much less was unreasonable, in concluding that Justice O’Connor “left the
door open to the possibility of continuing the commitment of a sane but dangerous
acquittee to a facility, other than a prison or a hospital[.]” Randall, 192 Wis. 2d at 832
n.22, 532 N.W. 2d at 106 n.22. To the contrary, as another jurist has observed, “If one
of the five Justices in the Foucha majority understood the decision to mean that there was
no hard-and-fast rule that a State must release a dangerous insanity acquittee once he
regains mental health, then it is not an unreasonable application of clearly established
federal law for a state court to believe the same.” Grass v. Reitz, 643 F.3d 579, 588 (8th
Cir. 2011) (J., Colloton, concurring in judgment); see also State v. Tooley, 875 S.W.2d 110,
113 n. 4 (Mo.1994) (declining to decide “whether it would be constitutionally permissible
to confine a sane person based on dangerousness alone,” but noting that “Justice O'Connor
did indicate in Foucha that this may be constitutional.”). But see Revels v. Sanders, 519 F.3d
734, 742 (8th Cir. 2008) (“[T]he rule urged by the respondent, that a state may continue
to hold an insanity acquittee who seeks unconditional release even if he is not presently
mentally ill, must be rejected.”).
Ultimately, the Wisconsin Supreme Court was satisfied that Wisconsin’s scheme
was sufficiently tailored “to reflect pressing public safety concerns related to the acquittee’s
continuing dangerousness” because its two mental health institutions designated for the
care and confinement of insanity acquittees, Mendota and Winnebago, were structured to
provide treatment for both mental and behavioral disorders and offered comprehensive
treatment programs designed to reduce the patient’s propensity for dangerousness. Id. at
Appendix C-51
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843-37, 532 N.W. 2d at 107-08. Given the structural differences between Louisiana’s and
Wisconsin’s scheme and Justice O’Connor’s stated understanding of the limitations of the
majority opinion in Foucha, I cannot say that this conclusion was contrary to or an
unreasonable application of Foucha.
Stowe cites two decisions from the Seventh Circuit describing Foucha as holding that
“a person committed because of an insanity verdict is entitled to release when he recovers
his sanity or is no longer dangerous.” Br. in Supp., dkt. 7, at 11, quoting Gilbert v.
McCulloch, 776 F.3d 487, 494 (7th Cir. 2015); see also Adams v. Bartow, 330 F.3d 957, 961
(7th Cir. 2003) (“[T]he general rule we take from Foucha is simply that an insanity acquittee
may be held for only as long as he is still mentally ill; his dangerous propensities alone do
not justify continued confinement.”). However, in both Gilbert and Adams, the court was
considering challenges to Wis. Stat. Chapter 980, which provides a process for the
indefinite civil commitment of sexually violent persons, not to the limited-term
confinement pursuant to an NGI determination that Stowe challenges in this case.
Accordingly, the court’s general description of Foucha’s majority holding in these two cases
cannot be understood as establishing that Stowe has a clearly established right to be
released in this case. Brown v. Davenport, ___ U.S. ___, 142 S. Ct. 1510, 1525 (2022)
(“Clearly established federal law as determined by the Supreme Court of the United States”
means just that: it does not include lower federal court decisions, the Supreme Court’s
dicta, or holdings that “speak only at a high level of generality.”) (citations omitted). In
fact, the Adams court noted that Foucha’s holding rested on “a specific combination of
factors,” including that the “the state had not shown that Foucha was dangerous and in
Appendix C-52
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fact had no obligation to do so because its statute placed the burden on the individual to
show that he was not dangerous.” Id., 330 F.3d at 960. Again, the “specific combination”
of factors present in Foucha are absent in Stowe’s case, as they were in Randall.
To be sure, as Justice Thomas noted in his dissenting opinion, it is not clear where
Justice O’Connor thought sane-but-dangerous acquittees could be confined, if not in a
mental health facility. Foucha, 504 U.S. at 125 (“I have no idea what facilities the Court
or Justice O'CONNOR believe the Due Process Clause mandates for the confinement of
sane-but-dangerous insanity acquittees.”). As the Randall court noted, one commentator
inferred that Justice O’Connor had in mind “dangerous person” facilities. Randall, 192
Wis. 2d at 832 n. 22, 532 N.W.2d at 106 n.22 (citing Rebecca Frank Dallet, FOUCHA v.
LOUISIANA: THE DANGER OF COMMITMENT BASED ON DANGEROUSNESS, 44
Case W. Res. L. Rev. 157, 181 (Fall, 1993)). But these ambiguities only shore up the
conclusion that federal habeas relief is unavailable to Stowe. “A federal court may grant
habeas relief only if a state court violated ‘clearly established Federal law, as determined by
the Supreme Court of the United States.’” Dunn v. Reeves, ___ U.S. ___, 141 S. Ct. 2405,
2410–11 (2021) (citing § 2254(d)(1), (emphasis in original).
A right is not “clearly
established” until the United States Supreme Court has made it “concrete.” Bland v. Hardy,
672 F.3d 445, 448 (7th Cir. 2012) (citing Wright v. Van Patten, 552 U.S. 120, 125-26
(2008)). I agree with the State that Foucha did not establish that a dangerous-but-sane
insanity acquittee has a concrete right to be conditionally released from a mental health
Appendix C-53
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facility that offers treatment designed to overcome that which makes him dangerous. 4
On reply, Stowe argues that even if it was not unreasonable for the Wisconsin
Supreme Court to conclude that the State may confine a sane-but-dangerous insanity
acquittee so long as the State is medically justified in doing so, Wisconsin’s scheme is
nonetheless unconstitutional because it presumes medical justification regardless of
individual circumstances. Dkt. 11, at 7 (citing State v. Randall, 586 N.W. 2d 318 (Ct. App.
1998) (Randall II). However, Stowe has waived this argument. He did not raise it until
reply and he hasn’t supported it with any citations to a Supreme Court case that clearly
establishes a right to an individualized determination of medical justification. United States
v. White, 8 F.4th 547, 552 (7th Cir. 2021) (arguments raised for first time on reply and
unsupported by pertinent authority are waived). Moreover, Stowe did not present this
argument in the state court proceedings, so it is procedurally defaulted. Richardson v. Lemke,
745 F.3d 258, 268 (7th Cir. 2014) (federal claim is “procedurally defaulted when a
petitioner fails to ‘fairly present’ [the] claim to the state courts.”).
Finally, in a fallback argument, Stowe argues that his confinement is unlawful under
Kansas v. Hendricks, 521 U.S. 346 (1997), because Wisconsin did not prove at his
conditional release hearing that he suffers from a mental abnormality or disorder that
makes it difficult, if not impossible, for him to control his dangerous behavior. Br. in
Supp., dkt. 7, at 17. As the State points out, Hendricks does not necessarily help Stowe: in
that case, the Court expressly rejected the notion that “mental illness” was required for
As noted previously, Stowe’s claim that he is not getting any therapeutic value out of his
confinement, while concerning, is defaulted and not before the court in this proceeding.
4
Appendix C-54
Case: 3:18-cv-00400-wmc Document #: 14 Filed: 09/26/22 Page 30 of 34
civil commitment, upholding a civil commitment scheme that defined the class of persons
eligible for confinement to those suffering from a “mental abnormality” or a “personality
disorder.” 521 U.S. at 358-59. As noted previously, there is no dispute that Stowe has
been diagnosed with a personality disorder.
The gist of Stowe’s claim seems to be that the State did not prove that his
personality disorder makes it seriously difficult to control his dangerous behavior, as
required by Hendricks and its successor, Kansas v. Crane, 534 U.S. 407, 413 (2002). See
Reply, dkt. 11, at 9. But Stowe failed to develop any legal argument, either here or in the
state courts, as to why the Hendricks/Crane standard for civil commitments necessarily
applies to a determinate NGI confinement scheme like Wisconsin’s. His brief in this court
includes only a perfunctory citation to Richard S. v. Carpinello, 589 F.3d 75, 83 (2d Cir.
2009), which did hold that Hendricks/Crane established a substantive due process standard
that applied to insanity commitments.
However, Stowe offers no explication of the facts or legal analysis employed in that
case and makes no attempt to persuade this court to adopt its reasoning; he simply cites it
and moves on.
See dkt. 7, at 17.
This court will not make his arguments for him,
particularly when it is unclear whether the state courts have been fairly apprised of the
claim. Nelson v. Napolitano, 657 F.3d 586, 590 (7th Cir. 2011) (“Neither the district court
nor this court are obliged to research and construct legal arguments for parties, especially
when they are represented by counsel.”); United States v. Holm, 326 F.3d 872, 877 (7th Cir.
2003) (“We have repeatedly warned that perfunctory and undeveloped arguments, and
arguments that are unsupported by pertinent authority, are waived (even where those
Appendix C-55
Case: 3:18-cv-00400-wmc Document #: 14 Filed: 09/26/22 Page 31 of 34
arguments raise constitutional issues.”) (quotation omitted)). And in any case, circuit
precedent does not constitute “clearly established Federal law, as determined by the
Supreme Court,” so Richard S. does not help Stowe anyway. Glebe v. Frost, 574 U.S. 21,
24 (2014) (per curiam). Finally, Stowe’s citation to two snippets from his conditional
release hearing is insufficient to permit this court to conclude the State failed to meet the
Hendricks/Crane standard, even if Stowe could somehow convince the court that it must
apply.
In sum, Stowe has failed to meet his heavy burden of showing that the Wisconsin
courts’ adjudication of his claim was contrary to or an unreasonable application of clearly
established Supreme Court law. Accordingly, I recommend that the court deny the petition
for a writ of habeas corpus.
ORDER
Pursuant to 28 U.S.C. § 636(b)(1)(B), IT IS RECOMMENDED that Graham
Stowe’s petition for a writ of habeas corpus be DENIED.
Entered this 26th day of September, 2022.
BY THE COURT:
/s/
_______________________
STEPHEN L. CROCKER
Magistrate Judge
Appendix C-56
Case: 3:18-cv-00400-wmc Document #: 14 Filed: 09/26/22 Page 32 of 34
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WISCONSIN
120 N. Henry Street, Rm. 540
Madison, Wisconsin 53703
Chambers of
STEPHEN L. CROCKER
U.S. Magistrate Judge
Telephone
(608) 264-5153
Colleen Marion
Wisconsin State Public Defender
P.O Box 7862
Madison, WI 53707-7862
Lisa Kumfer
Wisconsin Department of Justice
P.O. Box 7857
Madison, WI 53707-7857
Re:
Stowe v. Van Rybroek
Case No. 18-cv-400-wmc
Dear Counsel:
The attached Report and Recommendation has been filed with the court by the
United States Magistrate Judge.
The court will delay consideration of the Report in order to give the parties an
opportunity to comment on the magistrate judge's recommendations.
In accordance with the provisions set forth in the memorandum of the Clerk of
Court for this district which is also enclosed, objections to any portion of the report
may be raised by either party on or before October 11, 2022, by filing a memorandum
with the court with a copy to opposing counsel.
If no memorandum is received by October 11, 2022, the court will proceed to
consider the magistrate judge's Report and Recommendation.
Sincerely,
/s/
Connie A. Korth
Secretary to Magistrate Judge Crocker
Enclosures
Appendix C-57
Case: 3:18-cv-00400-wmc Document #: 14 Filed: 09/26/22 Page 33 of 34
MEMORANDUM REGARDING REPORTS AND RECOMMENDATIONS
Pursuant to 28 U.S.C. § 636(b), the district judges of this court have designated
the full-time magistrate judge to submit to them proposed findings of fact and
recommendations for disposition by the district judges of motions seeking:
(1) injunctive relief;
(2) judgment on the pleadings;
(3) summary judgment;
(4) to dismiss or quash an indictment or information;
(5) to suppress evidence in a criminal case;
(6) to dismiss or to permit maintenance of a class action;
(7) to dismiss for failure to state a claim upon which relief can be granted;
(8) to dismiss actions involuntarily; and
(9) applications for post-trial relief made by individuals convicted of
criminal offenses.
Pursuant to § 636(b)(1)(B) and (C), the magistrate judge will conduct any
necessary hearings and will file and serve a report and recommendation setting forth his
proposed findings of fact and recommended disposition of each motion.
Any party may object to the magistrate judge’s findings of fact and recommended
disposition by filing and serving written objections not later than the date specified by
the court in the report and recommendation. Any written objection must identify
specifically all proposed findings of fact and all proposed conclusions of law to which the
33
Appendix C-58
Case: 3:18-cv-00400-wmc Document #: 14 Filed: 09/26/22 Page 34 of 34
party objects and must set forth with particularity the bases for these objections. An
objecting party shall serve and file a copy of the transcript of those portions of any
evidentiary hearing relevant to the proposed findings or conclusions to which that party
is objection. Upon a party’s showing of good cause, the district judge or magistrate judge
may extend the deadline for filing and serving objections.
After the time to object has passed, the clerk of court shall transmit to the district
judge the magistrate judge’s report and recommendation along with any objections to it.
The district judge shall review de novo those portions of the report and
recommendation to which a party objects. The district judge, in his or her discretion,
may review portions of the report and recommendation to which there is no objection.
The district judge may accept, reject or modify, in whole or in part, the magistrate judge’s
proposed findings and conclusions. The district judge, in his or her discretion, may
conduct a hearing, receive additional evidence, recall witnesses, recommit the matter to
the magistrate judge, or make a determination based on the record developed before the
magistrate judge.
NOTE WELL: A party’s failure to file timely, specific objections to the
magistrate’s proposed findings of fact and conclusions of law constitutes waiver of
that party’s right to appeal to the United States Court of Appeals. See United
States v. Hall, 462 F.3d 684, 688 (7th Cir. 2006).
34
Appendix C-59
State v. Stowe, 379 Wis.2d 767 (2017)
2018 WI App 8, 909 N.W.2d 210
379 Wis.2d 767, 2018 WI App 8
Unpublished Disposition
See Rules of Appellate Procedure, Rule 809.23(3),
regarding citation of unpublished opinions. Unpublished
opinions issued before July 1, 2009, are of no
precedential value and may not be cited except in
limited instances. Unpublished opinions issued on or
after July 1, 2009 may be cited for persuasive value.
NOTE: THIS OPINION WILL NOT
APPEAR IN A PRINTED VOLUME. THE
DISPOSITION WILL APPEAR IN A REPORTER.
Per curiam opinions may not be cited in any court of this
state as precedent or authority, except for the limited
purposes specified in WIS. STAT. RULE 809.23(3).
Court of Appeals of Wisconsin.
STATE of Wisconsin, Plaintiff-Respondent,
v.
Graham L. STOWE † , Defendant-Appellant.
Appeal No. 2016AP2367-CR
|
December 27, 2017
APPEAL from an order of the circuit court for Brown County,
Cir. Ct. No. 2004CF124: KENDALL M. KELLEY, Judge.
Affirmed.
Before Stark, P.J., Hruz and Seidl, JJ.
Opinion
PER CURIAM.
*1 ¶1 Graham Stowe appeals an order denying his petition
for conditional release under
WIS. STAT. § 971.17(4)
1
(2015-16). Stowe contends the State failed to prove by
clear and convincing evidence that, if conditionally released,
he would pose a significant risk of bodily harm to himself
or others or a significant risk of property damage. See
§ 971.17(4)(d). Stowe also argues
§ 971.17(4)(d) is
unconstitutional both as applied to him and on its face. We
reject Stowe's arguments and affirm.
BACKGROUND
¶2 A criminal complaint alleged that, in the early morning
hours of February 9, 2004, Stowe entered his ex-girlfriend's
residence and forced her and their two-year-old daughter
out of bed at gunpoint. Stowe subsequently tied up and
handcuffed his ex-girlfriend, her minor brother, and her father.
He beat her father with a baton and doused him with gasoline.
Stowe repeatedly stated he was going to take his ex-girlfriend
somewhere and force her to watch him commit suicide.
He also threatened to kill her father and sister. Stowe's
ex-girlfriend was ultimately able to call 911, and she later
escaped with her daughter after police arrived at the residence.
While police remained outside the residence, Stowe took
some pills—after again indicating he wanted to kill himself
—and then passed out. His ex-girlfriend's father and brother
were then able to escape.
¶3 Stowe was charged with eleven counts as a result of these
events. He entered pleas of not guilty by reason of mental
disease or defect (NGI) to each of the charges against him.
Stowe subsequently entered no contest pleas to first-degree
recklessly endangering safety, intimidation of a victim, felony
bail jumping, and three counts of false imprisonment. The
circuit court found Stowe NGI with respect to those offenses,
and the remaining charges were dismissed. The court ordered
Stowe committed to the Department of Health and Family
Services for institutional care for thirty-nine years and six
months.
¶4 In April 2007, the circuit court entered an order
conditionally releasing Stowe. However, in June 2009, the
Department of Health Services (DHS) petitioned to revoke
Stowe's conditional release. The petition alleged Stowe
had violated his rules of conditional release by entering a
bar where his ex-girlfriend worked, and an attached report
indicated he had repeatedly violated his rules on other
occasions, despite numerous warnings. The circuit court
revoked Stowe's conditional release in July 2009.
¶5 Stowe petitioned for conditional release three more times
between 2010 and 2012. The circuit court denied each of
Stowe's petitions, and we affirmed those decisions on appeal.
See State v. Stowe, No. 2012AP2644-CR, unpublished slip op.
(WI App July 30, 2013); State v. Stowe, No. 2011AP2920CR, unpublished slip op. (WI App Oct. 10, 2012); State v.
Stowe, No. 2010AP2458-CR, unpublished slip op. (WI App
June 7, 2011).
¶6 In July 2013, Stowe escaped from a minimum security
unit at Mendota Mental Health Institute. The record indicates
© 2024 Thomson Reuters. No claim to original U.S. Government Works.
Appendix D-60
1
State v. Stowe, 379 Wis.2d 767 (2017)
2018 WI App 8, 909 N.W.2d 210
Stowe “impulsively took off from [Mendota] when he thought
that security guards were going to place him in a more
secure unit.” He evaded capture for over three months.
He was subsequently convicted of escape and sentenced
to prison. After serving the initial confinement portion of
his sentence, Stowe was returned to Mendota to serve the
extended supervision portion of his sentence while serving his
commitment and was placed in a maximum security unit.
*2 ¶7 In February 2016, Stowe filed the petition for
conditional release that is at issue in this appeal. Two courtappointed psychologists—Dr. William Merrick and Dr. Kevin
Miller—evaluated Stowe, submitted reports to the circuit
court, and testified at Stowe's conditional release hearing.
Stowe's treatment team at Mendota submitted a letter to the
court, and Dr. Elliot Lee, a staff psychiatrist at Mendota,
testified at the hearing. Stowe's wife, Nicole Zich, also
testified at the hearing, and Stowe read a statement in support
of his conditional release.
¶8 At the close of the conditional release hearing, the circuit
court found the State had met its burden to prove, by clear and
convincing evidence, that Stowe would pose a significant risk
of bodily harm to himself or others if he were conditionally
released. The court began by describing Stowe's statement
in support of conditional release as “consistently disturbing.”
The court explained, “[I]t demonstrated what the Court
was already aware of, ... that [Stowe] is very bright,
intelligent, capable and articulate, but there is such a distorted
self-serving view and presumption of being a victim that
permeates all of it, that that is a concern.” The court stated
Stowe's perceptions regarding his own situation did not
“seem to square in any sense with what has occurred, and
that ability to distort reality for his own purposes is, in fact,
something that increases the Court's perception of risk.”
¶9 Turning to the expert witnesses’ testimony, the circuit
court noted Dr. Merrick had testified “that it was his
opinion [Stowe] was dangerous to himself or others to a
reasonable degree of certainty within his profession.” The
court also cited Dr. Lee's testimony regarding Stowe's refusal
to engage in treatment. The court further relied on Dr. Miller's
testimony that Stowe's current mindset “is consistently one
of hopelessness” and that, if Stowe were released, that
hopelessness could “become[ ] more manifest,” suggesting “a
much higher risk as a consequence.”
¶10 The circuit court next cited Stowe's “long history” of
antisocial behavior, as well as his “more recent conduct,”
including his escape from a lower-security unit at Mendota.
The court emphasized that Stowe “was not following the
law” and was in possession of marijuana during his period of
escape. The court described the escape as “clearly impulsive”
and stated it was “consistent with the very kind of conduct
that started out in this case in the first place.” While the
court stated Stowe's original offenses were “not the Court's
focus so much here today,” the court emphasized that Stowe's
more recent conduct was “not inconsistent with the original
offense.”
¶11 Consistent with its oral ruling, the circuit court entered a
written order denying Stowe's petition for conditional release.
Stowe now appeals.
DISCUSSION
I. Sufficiency of the evidence
¶12 A person who has been committed to DHS custody
after being adjudicated NGI of a crime may petition the
committing court for conditional release under
WIS.
STAT. § 971.17(4). The court must grant the petition “unless it
finds by clear and convincing evidence that the person would
pose a significant risk of bodily harm to himself or herself
or to others or of serious property damage if conditionally
released.”
Sec. 971.17(4)(d). In determining whether a
person meets this standard, a court may, but is not required to,
consider the following non-exhaustive list of factors: (1) the
nature and circumstances of the crime; (2) the person's mental
history and present mental condition; (3) where the person
will live; (4) how the person will support himself or herself;
(5) what arrangements are available to ensure that the person
has access to and will take necessary medication; and (6) what
arrangements are possible for treatment beyond medication.
Id.; see also State v. Randall, 2011 WI App 102, ¶16, 336 Wis.
2d 399, 802 N.W.2d 194 (Randall III ). Ultimately, the State
bears the burden to prove, by clear and convincing evidence,
that the petitioner meets the dangerousness standard set forth
in
§ 971.17(4)(d). Randall III, 336 Wis. 2d 399, ¶15.
*3 ¶13 We review the circuit court's conditional release
determination using the deferential “sufficiency of the
evidence” standard. Id., ¶13. In applying this standard, we
review the record to determine whether credible evidence
exists to support the circuit court's finding of continued
dangerousness. Id., ¶17. Stated differently, we ask whether the
circuit court could “reasonably be convinced by evidence it
© 2024 Thomson Reuters. No claim to original U.S. Government Works.
Appendix D-61
2
State v. Stowe, 379 Wis.2d 767 (2017)
2018 WI App 8, 909 N.W.2d 210
ha[d] a right to believe and accept as true.” Id., ¶13 (quoting
State v. Wilinski, 2008 WI App 170, ¶12, 314 Wis. 2d 643,
762 N.W.2d 399). “If so, we affirm, despite the fact that
there may be evidence and inferences to the contrary.” Id.,
¶17. Moreover, “we give deference to the [circuit] court's
determination of credibility and evaluation of the evidence
and draw on its reasoning.” Id., ¶14.
2
¶14 Here, credible evidence supports the circuit court's
determination that the State met its burden to prove Stowe
would pose a significant risk of bodily harm to himself
or others if conditionally released. A number of factors—
both statutory and otherwise—support the court's finding of
continued dangerousness.
¶15 First, the nature and circumstances of Stowe's index
offenses as described above support the circuit court's
determination. See WIS. STAT. § 971.17(4)(d). During the
hearing on Stowe's petition for conditional release, Dr. Miller
accurately described Stowe's actions that night as “horrific.”
The conduct underlying Stowe's index offenses indisputably
put both Stowe and others at significant risk of bodily harm.
¶16 Evidence regarding Stowe's mental history and
current mental condition further supports the circuit court's
determination regarding Stowe's risk of dangerousness
if conditionally released. See id. Stowe was previously
diagnosed with “Major Depressive Disorder with Psychotic
Features.” At the time he committed his index offenses,
he was experiencing “auditory hallucinations that were
giving him the message to kill himself.” Doctor Merrick
reported Stowe has “not shown evidence of any mood
disorder or psychotic symptoms (hallucinations, delusions,
formal thought disorder) for many years, and has not
required psychiatric medications to manage symptoms of
any mental illness in over ten years.” Nonetheless, both Dr.
Merrick and Dr. Lee opined that Stowe currently meets the
diagnostic criteria for “Other Specific Personality Disorder,
with Narcissistic and Antisocial Features.”
While Dr. Miller testified antisocial behaviors tend to
decrease when a person reaches age forty, Dr. Merrick
testified that narcissism, Stowe's “prominent ... maladaptive
personality trait, does not show the same age-related decline.”
*4 ¶18 Doctor Merrick also diagnosed Stowe with “Alcohol
and Cannabis Use Disorders, both In Sustained Remission,
In a Controlled Environment.” Doctor Miller observed that
Stowe “was using cocaine and methamphetamine in the
week prior to” his index offenses. Doctor Miller opined
that Stowe's drug use contributed to his index offenses
and that Stowe “is a risk of future harm” when “using
illicit substances such as cocaine and methamphetamines.”
He further noted that Stowe used cannabis while in the
community following his 2013 escape from Mendota, and
that Stowe has “demonstrated across time and situation
that he is not able to refrain from substance use.” Doctor
Miller asserted, “[S]hould [Stowe] resume illicit substance
use on conditional release[,] he may be more prone to future
violent acts.” Based on this evidence, the circuit court could
reasonably infer that, if conditionally released, there was a
significant risk Stowe would resume the type of drug use that
contributed to his index offenses, thus putting both Stowe and
others at risk of bodily harm.
¶19 The circuit court could also reasonably rely on Dr.
Merrick's and Dr. Miller's testimony that Stowe's current
mental state is one of hopelessness, which poses a risk of
danger to both Stowe and others. Doctor Miller testified
Stowe “appears to be fairly hopeless at this point” because he
“doesn't believe he's going to get a fair shake from Mendota
or the Court.” Doctor Miller further explained in his report:
¶17 The circuit court could reasonably infer that this
diagnosis supported a finding of continued dangerousness
under
WIS. STAT. § 971.17(4)(d). Doctor Miller testified
Stowe's narcissism creates a risk of him “doing something
impulsive,” citing Stowe's prior escape from Mendota as
an example. Doctor Miller also indicated that antisocial
personality characteristics “are associated with higher risk of
violence when compared with typical or average individuals.”
Mr. Stowe has formed the belief
that the Court will not treat him
objectively. Mr. Stowe is convinced
that he will spend all of his remaining
commitment, until the year 2043 at
age 60, in a state facility because he
doesn't believe the Court will ever
grant him conditional release again.
Mr. Stowe currently maintains a belief
that he would have more freedom,
and more opportunity to interact with
others in a meaningful manner[,] if
he returned to a prison facility like
Green Bay Correctional Institution. He
claims a member of the Department of
© 2024 Thomson Reuters. No claim to original U.S. Government Works.
Appendix D-62
3
State v. Stowe, 379 Wis.2d 767 (2017)
2018 WI App 8, 909 N.W.2d 210
Community Corrections let him know
that the “only” way he, Mr. Stowe,
would get revoked from probation and
returned to a DOC facility is if he
“caught a case.”
¶20 Doctor Miller went on to state that, if Stowe were granted
conditional release, it was “highly likely” he would either
violate or be accused of violating his rules of conditional
release and would therefore be subject to revocation. Doctor
Miller opined that, under those circumstances, Stowe's
hopelessness would create an “elevated risk of impulsive
or aggressive behavior,” including violence, because Stowe
would rather “catch a case” and go to prison than return to
Mendota. Doctor Miller also stated Stowe's hopelessness put
him at risk of suicide. He likened Stowe's current mental state
to his mindset at the time of his index offenses, when Stowe
“felt he had nothing left to lose by killing himself and making
others watch.” Doctor Merrick similarly opined that Stowe's
current mindset is characterized by hopelessness, which is
associated with a risk of suicide.
¶21 Evidence regarding Stowe's postcommitment conduct
also supports the circuit court's determination that Stowe
would pose a significant risk of bodily harm to himself or
others if conditionally released. As noted above, Stowe was
revoked from conditional release in 2009 after repeatedly
violating his rules of supervision, including by entering a bar
where his ex-girlfriend worked. Stowe later escaped from
Mendota after forming a belief that he was going to be
transferred to a higher security unit. While in the community
following his escape, Stowe engaged in illegal conduct by
using marijuana.
¶22 These actions demonstrate that, during the years since
his commitment, Stowe has consistently been either unwilling
or unable to adhere to rules imposed on him. Notably, Dr.
Merrick assessed Stowe's risk of future violence using the
HCR-20, a “structured clinical method of assessing risk of
a person to engage in act of actual, attempted, or threatened
harm to another person.” Doctor Merrick determined that,
under the HCR-20, Stowe's risk of future non-sexual violence
in the next six to twelve months was in the “medium”
range. Doctor Merrick observed the most significant risk
management factor under the HCR-20 was Stowe's failure to
comply with rules.
*5 ¶23 The record also indicates that, after Stowe was
returned to Mendota following his escape, he was placed in
a maximum security unit. Stowe's treatment team explained
Stowe is housed in that unit “because public safety would
be jeopardized in the event of an escape from a less secure
environment.” This assessment further supports the circuit
court's determination that conditionally releasing Stowe
would pose a significant risk of danger to either Stowe or the
public.
¶24 In addition, Stowe's treatment team explained that when
Stowe was returned to Mendota in 2015, he initiated a
hunger strike in order to protest his placement there. Stowe
continued his hunger strike, despite being informed that doing
so could have negative effects on his health. Even after Dr.
Lee explained to Stowe that staff needed to draw his blood to
check his condition because he was at risk of kidney failure,
Stowe refused to consent to a blood draw and actively resisted
subsequent efforts to forcibly draw his blood. This evidence
indicates Stowe is willing to engage in conduct he knows is
deleterious to his physical health, which supports an inference
that he would pose a danger to himself if conditionally
released.
¶25 Evidence regarding Stowe's treatment needs also
supports the circuit court's dangerousness determination. See
WIS. STAT. § 971.17(4)(d). Although the record shows
Stowe has little or no need for medication, Dr. Merrick
testified personality disorder with narcissistic and antisocial
features is “one of the more difficult psychological conditions
to treat,” and treatment typically involves “fairly intensive
individual psychotherapy” at least once a week “over the
course of years.” Doctor Merrick specifically opined that,
given the narcissistic features of Stowe's personality disorder,
it will “take some time for him to realize that he is not the
center of the universe, [and] that other people matter.” Based
on Dr. Merrick's testimony, the circuit court could reasonably
conclude Stowe's treatment needs are substantial.
¶26 Moreover, evidence was introduced at the conditional
release hearing indicating that Stowe has refused to engage
in treatment since returning to Mendota. Stowe's treatment
team, for instance, noted he has been “minimally involved
with treatment on the unit and frequently refuses to meet
with the clinical team.” 3 Based on this evidence, the circuit
court could reasonably infer that Stowe's personality disorder,
which predisposes him to violent and impulsive behavior, has
not yet been controlled through treatment. The court could
also reasonably question whether Stowe would avail himself
© 2024 Thomson Reuters. No claim to original U.S. Government Works.
Appendix D-63
4
State v. Stowe, 379 Wis.2d 767 (2017)
2018 WI App 8, 909 N.W.2d 210
of treatment opportunities if conditionally released, given his
failure to participate in treatment while institutionalized.
¶27 The evidence summarized above is more than sufficient
to support the circuit court's determination that the State
proved, by clear and convincing evidence, that Stowe would
pose a significant risk of bodily harm to himself or others
if conditionally released. None of Stowe's arguments to the
contrary are persuasive. For instance, Stowe asserts that
“neither doctor appointed to evaluate [him] opined that he
posed a significant risk of harm to himself or others ... if
conditionally released.” Stowe contends Dr. Merrick merely
opined that Stowe “may” pose a significant risk if released,
while Dr. Miller declined to offer an opinion one way or the
other.
*6 ¶28 This argument fails for two reasons. First, while Dr.
Merrick's report stated Stowe “may” pose a significant risk of
harm to himself or others if released, the following exchange
occurred during Stowe's conditional release hearing:
[THE STATE]: ... With the defendant's attitude at this point
in time, past behavior, the testings that you've cited, do
you see him posing at this point in time, without further
treatment, ... a significant risk of harm to himself or others
if he were conditionally released?
[DOCTOR MERRICK]: From the maximum security unit,
yes.
(Emphasis added.) Thus, despite using the word “may” in his
report, Dr. Merrick testified unequivocally at the conditional
release hearing that Stowe would pose a significant risk of
harm to himself or others if conditionally released.
¶29 Second, Stowe cites no authority in support of the
proposition that a court may not conclude a person meets
the dangerousness standard set forth in
WIS. STAT. §
971.17(4)(d) without an explicit expert opinion to that effect.
Nothing in the text of the statute suggests that is the case.
We have previously recognized that expert testimony is not
required to support a finding of future dangerousness in
commitment proceedings under WIS. STAT. ch. 980. See
State v. Mark, 2008 WI App 44, ¶51, 308 Wis. 2d 191,
747 N.W.2d 727. Moreover, it is well established that a circuit
court, when acting as factfinder, may accept certain portions
of an expert's testimony while disregarding others. See
State v. Owen, 202 Wis. 2d 620, 634, 551 N.W.2d 50 (Ct.
App. 1996). Accordingly, the circuit court in this case could
accept various portions of the experts’ testimony supporting
a determination that Stowe meets the dangerousness standard
in
§ 971.17(4)(d), without relying on the experts’ ultimate
opinions on that issue.
¶30 Stowe next notes that his wife, Nicole Zich, testified
Stowe could live with her if conditionally released and had
been offered a job in construction. Stowe argues these factors
weigh in favor of conditional release. See
WIS. STAT.
§ 971.17(4)(d). However, when reviewing a circuit court's
decision on a petition for conditional release, we must affirm
as long as credible evidence supports the court's decision,
even if other evidence supports a contrary conclusion.
Randall III, 336 Wis. 2d 399, ¶17. Here, as summarized
above, there is ample credible evidence to support the circuit
court's decision to deny Stowe's petition.
¶31 Finally, Stowe asserts that conditional release is
“highly structured.” He apparently intends to argue that the
“structured” nature of conditional release will minimize or
eliminate any risk he may pose to himself or others. However,
this argument ignores Stowe's past violations of his rules
of conditional release. It also disregards his escape from a
minimum security unit at Mendota. In addition, it ignores Dr.
Merrick's opinion that Stowe's history of failing to follow
rules is a significant factor supporting a determination that
he would pose a risk of bodily harm to himself or others if
conditionally released. On this record, the circuit court did
not err by denying Stowe's petition, despite the “structured”
nature of conditional release.
II. As-applied challenge to
WIS. STAT. § 971.17(4)(d)
*7 ¶32 Stowe next argues
WIS. STAT. § 971.17(4)(d)
is unconstitutional as applied to him. Stowe's argument is
based on State v. Randall, 192 Wis. 2d 800, 532 N.W.2d
94 (1995) (Randall I ). There, our supreme court considered
whether a statutory scheme that “allows the state to confine
an insanity acquittee who is no longer mentally ill, solely
on the grounds that the individual is a danger to himself,
herself or others, violate[s] the Due Process Clause of the
United States Constitution.” Id. at 806 (footnote omitted).
The court concluded it is not a denial of due process “for
an insanity acquittee who has committed a criminal act to be
confined in a state mental health facility for so long as he or
she is considered dangerous, provided that the commitment
does not exceed the maximum term of imprisonment which
could have been imposed.” Id. at 806-07. The court stated
© 2024 Thomson Reuters. No claim to original U.S. Government Works.
Appendix D-64
5
State v. Stowe, 379 Wis.2d 767 (2017)
2018 WI App 8, 909 N.W.2d 210
this conclusion was “not inconsistent with” the United State's
Foucha v. Louisiana, 504
Supreme Court's decision in
U.S. 71 (1992), which the court read as permitting the
continued confinement of dangerous but sane NGI acquittees
in mental health facilities “so long as they are treated in a
manner consistent with the purposes of their commitment,
e.g., there must be a medical justification to continue holding
a sane but dangerous insanity acquittee in a mental health
facility.” Randall I, 192 Wis. 2d at 807.
¶33 Stowe argues that, in this case, the State is “not housing
[him] in a facility appropriate to his condition and is not
providing him with care and treatment to overcome that
which makes him allegedly dangerous.” In other words, he
asserts he is not receiving any “therapeutic benefit” from
his continued confinement at Mendota. He therefore argues
WIS. STAT. § 971.17(4)(d) is unconstitutional as applied
to him because it permits his continued confinement based
solely on a finding of dangerousness, even though he is no
longer mentally ill and there is no “medical justification” for
his continued confinement.
¶34 As the State points out, Stowe did not raise this argument
in the circuit court. “It is a fundamental principle of appellate
review that issues must be preserved at the circuit court.
Issues that are not preserved at the circuit court, even alleged
constitutional errors, generally will not be considered on
appeal.”
State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d
486, 611 N.W.2d 727.
¶35 Although we may exercise our discretion to address the
merits of a forfeited argument, see
State v. Caban, 210
Wis. 2d 597, 609, 563 N.W.2d 501 (1997), we decline to
do so here for two reasons. First, one of the purposes of
the forfeiture rule is to give “both parties and the circuit
court notice of the issue and a fair opportunity to address”
it.
State v. Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653,
761 N.W.2d 612. Although the ultimate issue of whether
WIS. STAT. § 971.17(4)(d) is unconstitutional as applied
to Stowe is a question of law for our independent review,
see State v. Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377, 780
N.W.2d 90, important factual issues bear upon that question
—for instance, the nature and extent of the treatment Stowe
is currently receiving, whether that treatment is providing
any therapeutic benefit, and the impact of Stowe's refusal
to engage in treatment. Had Stowe raised his as-applied
challenge to § 971.17(4)(d) in the circuit court, the parties
could have presented additional evidence pertaining to these
factual issues. The absence of such evidence hinders our
ability to address Stowe's as-applied challenge.
¶36 Second, as the State notes, conditional release
proceedings in NGI cases are “recurring events.” An NGI
acquittee may file a petition for conditional release “if at least
6 months have elapsed since the initial commitment order
was entered, the most recent release petition was denied or
the most recent order for conditional release was revoked.”
WIS. STAT. § 971.17(4)(a). Thus, applying the forfeiture
rule in Stowe's current appeal will not permanently foreclose
him from raising his as-applied constitutional challenge.
Instead, he will have an opportunity to raise that argument
when he next petitions for conditional release. This factor
militates against addressing the merits of Stowe's argument
in the instant appeal.
*8 ¶37 We also decline Stowe's invitation to review his asapplied challenge to
WIS. STAT. § 971.17(4)(d) under the
plain error doctrine. “The plain error doctrine allows appellate
courts to review errors that were otherwise waived by a party's
failure to object.”
State v. Jorgensen, 2008 WI 60, ¶21,
310 Wis. 2d 138, 754 N.W.2d 77. However, the error must be
“obvious and substantial,” and courts “should use the plain
error doctrine sparingly.” Id. (quoted source omitted). Here,
beyond baldly asserting that an “obvious and substantial”
violation of his constitutional right to liberty has occurred,
Stowe does not develop any argument indicating why we
should use the plain error doctrine to reach the merits of his
as-applied constitutional challenge. He does not, for instance,
cite cases in which Wisconsin courts have used the plain error
doctrine to review similar constitutional claims. We need not
address undeveloped arguments. See State v. Pettit, 171 Wis.
2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).
¶38 Stowe also asserts that, because
WIS. STAT. §
971.17(4)(d) is unconstitutional as applied to him, “justice has
miscarried,” and we should therefore grant him discretionary
reversal in the interest of justice under WIS. STAT. § 752.35.
Again, however, Stowe's two-sentence argument in this
regard is undeveloped, in that it merely states the statutory
standard without explaining in any detail why discretionary
reversal is warranted in the instant case. We therefore decline
to address Stowe's discretionary reversal argument. See
Pettit, 171 Wis. 2d at 646-47.
© 2024 Thomson Reuters. No claim to original U.S. Government Works.
Appendix D-65
6
State v. Stowe, 379 Wis.2d 767 (2017)
2018 WI App 8, 909 N.W.2d 210
III. Facial constitutional challenge to
971.17(4)(d)
WIS. STAT. §
¶39 Finally, Stowe argues
WIS. STAT. § 971.17(4)(d) is
unconstitutional on its face because it permits the continued
confinement of an NGI acquittee based on dangerousness
alone. However, as Stowe acknowledges, the Wisconsin
Supreme Court found a similar, predecessor statute facially
valid in Randall I, rejecting the defendant's argument that the
statute violated his right to due process because it permitted
his continued confinement based solely on a determination
that he was a danger to himself or others. See Randall I, 192
Wis. 2d at 806-07. We have no power to overrule, modify, or
withdraw language from a previous supreme court decision.
Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d
See
246 (1997). Based on Randall I, we therefore reject Stowe's
argument that
§ 971.17(4)(d) is facially unconstitutional.
By the Court.—Order affirmed.
All Citations
379 Wis.2d 767, 2018 WI App 8, 909 N.W.2d 210 (Table),
2017 WL 6606755
Footnotes
†
Petition for Review Filed
1
All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted.
2
Citing
K.N.K. v. Buhler, 139 Wis. 2d 190, 407 N.W.2d 281 (Ct. App. 1987), Stowe argues we should apply
a bifurcated standard of review, upholding the circuit court's factual findings unless they are clearly erroneous,
but independently reviewing “whether the facts meet the legal standard for a mental commitment.” However,
K.N.K. was an appeal from a circuit court's order for protective placement under WIS. STAT. ch. 55. See
K.N.K., 139 Wis. 2d at 197. In State v. Randall, 2011 WI App 102, ¶¶11-17, 336 Wis. 2d 399, 802 N.W.2d
194 (Randall III ), we expressly held that the deferential “sufficiency of the evidence” standard applies when
a defendant challenges the sufficiency of the evidence supporting a circuit court's decision to deny a petition
for conditional release from an NGI commitment.
3
Although both Dr. Merrick and Dr. Miller questioned whether Stowe's treatment plan at Mendota is
appropriate for a person with his diagnosis, the record amply demonstrates that Stowe has been unwilling to
engage in treatment, regardless of professional disputes about the appropriateness of a specific treatment
program.
End of Document
© 2024 Thomson Reuters. No claim to original U.S. Government Works.
© 2024 Thomson Reuters. No claim to original U.S. Government Works.
Appendix D-66
7
Case: 3:18-cv-00400-wmc Document #: 6-1 Filed: 11/29/18 Page 1 of 1
.,._
StATE OF WISCONSIN
CIRCUIT COURT
BROWN COUN'IY
BRANCH IV
STATE OF WISCONSIN,
AUTHENTicATEO coPY
Fr, .F=f)
PJeintift
vs.
GRAHAML: STOWE,
Defendant
ORDER
D ~ G PEIIIION FOR
JUN 3 OZofONDmONAL~
CLERK"OF couRfSCase No. 2004 CF 124
BROWN COUNTY, WJ
. WBBREAS, de&mdam, Graham L. S1owe, having filed a Petition for Conditional Release
pursuant to sec. 971.17(4), ~ on February 8, 2016; and
WBBREAS, the he.aring on the Petition for Conditional Release was held on May 26, 2016
and June 20, 2016; and
WHEREAS, the court, Hcmomble XcmdalJ M. Kelley, presided over this matter and the
state bav.ing apJ)fAIIed on May 26, 2016 by Deputy District Attomey Mary Kerrigan-~ and on
June 20, 2016 by Special Prosecutor Lmry I.asee and the defendarn: having appeared_ in pezson on
both hearing dates and with his attorney, David J. Matyas; and
.
.
.
WBBREAS, tbe court having considered tbe reconi iDcludmg the testimony, evidence,
ex:lnmts, arguments of comisel, and the statement of the defendant;
NOW, THEREFORE, IT IS HEREBY ORDERED that the petition for conditional releue
is denied because the state has proven by clear and convincing evidence that defendant, Graham
.
./,
L. Stowe, would pose a signi:fiamt risk of bodily hmm to himself or to o1beIS or serious property
damage if conditionally released.
Datm~dayJJ(JJlL
, 2016, NUNCPRO TUNC.Tune20, 2016.
By the Court
ISi KENDALL M. KELLEY
. -112Appendix E-67
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.